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McMullin v. Peirson

United States District Court, D. Maine

January 16, 2019

JOSEPH MCMULLIN, Plaintiff
v.
ANDREW W. PEIRSON, Defendant

          DECISION AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          LANCE E. WALKER, U.S. DISTRICT JUDGE

         In this removed action, the Plaintiff, Joseph McMullin, alleges the Defendant, Trooper Andrew W. Peirson, violated his “rights under the Fourth Amendment of the United States Constitution to be free from excessive, unreasonable, or unnecessary force” during an arrest for criminal OUI, 29-A M.R.S.A. § 2411. Pl.'s Compl. ¶ 28 (ECF No. 3-2). Defendant Peirson moves for summary judgment on the Plaintiff's excessive force claim, arguing that his actions were objectively reasonable under the circumstances. Alternatively, the Defendant argues that even if the Plaintiff's rights were violated, summary judgment is warranted on the basis of qualified immunity. Mot. Summ. J. (ECF No. 24).

         Based on my review, I find that the Plaintiff has not raised genuine issue for trial to support his contention that the force used was unreasonable and I, therefore, grant Defendant's motion.

         FACTS

         I take the facts in the light most favorable to the Plaintiff. The summary judgment facts are drawn from the parties' stipulations and their statements of material facts submitted in accordance with Local Rule 56. The Court will treat as undisputed a statement of fact admitted by the opposing party. If a statement is denied or qualified by the opposing party, or if an evidentiary objection is raised concerning the record evidence cited in support of a statement, the Court will review those portions of the summary judgment record cited by the parties, and will accept, for summary judgment purposes, the factual assertion that is most favorable to the party opposing the entry of summary judgment, provided that the record material cited in support of the assertion is of evidentiary quality and is capable of supporting the party's assertion, either directly or through reasonable inference. D. Me. Loc. R. 56; Boudreau v. Lussier, 901 F.3d 65, 69 (1st Cir. 2018). Additionally, in cases such as these where the events in question are captured on video and the parties have stipulated to the authenticity and admissibility of the video, the court must “view[ ] the facts in the light depicted by the videotape.” Scott v. Harris, 550 U.S. 372, 380-81 (2007); see also Mitchell v. Miller, 56 F.Supp.3d 57, 61 (D. Me. 2014), aff'd, 790 F.3d 73 (1st Cir. 2015).

         On February 21, 2016, Defendant Peirson, a Trooper of the Maine State Police, was on patrol in his marked police cruiser in Howland, Maine. Def.'s Statement of Material Facts (“DSMF”) ¶¶ 1, 2 (ECF No. 23, #211). At approximately 8:00 pm, Trooper Peirson stopped a vehicle operated by Plaintiff McMullin due to his reasonable and articulable suspicion that Mr. McMullin was intoxicated. Id. ¶¶ 4-5; Joint Statement of Facts (“JSF”) ¶ 1 (ECF No. 21, #208). Mr. McMullin was accompanied by two passengers in the vehicle: Ashley McMullin, Mr. McMullin's then 15-year-old daughter, and Kylie Tibbetts, the then 18-year-old girlfriend of Mr. McMullin's son. DSMF ¶ 13.

         After a brief interaction during which Trooper Peirson observed that Mr. McMullin's speech was slurred, his eyes were glazed over, and he smelled of alcohol, Trooper Peirson asked Mr. McMullin to step out of his vehicle and perform a variety of field sobriety tests. Id. ¶¶ 12, 16. At the conclusion of these tests, both parties agree Trooper Peirson had probable cause to arrest Mr. McMullin for criminal OUI, 29-A M.R.S. § 2411. Id. ¶ 17; JSF ¶ 2. Reliable blood alcohol content test results later confirmed Trooper Peirson's assessment, indicating that Mr. McMullin had a 0.149 blood alcohol level. DSMF ¶¶ 96-97; JSF ¶ 3.

         After completing the field tests, Trooper Peirson informed Mr. McMullin he was under arrest. DSMF ¶¶ 18, 19. Although Mr. McMullin never tried to run away from Trooper Peirson, Pl. Add'l Statement of Material Facts (“PSMF”) ¶ 107 (ECF No. 30, #278), he, nevertheless, failed to comply with Trooper Peirson's eight separate requests to turn around and put his hands behind his back. DSMF ¶¶ 18, 26, 29, 34, 36, 38, 44, 48. Instead, Mr. McMullin consistently backed away from Trooper Peirson, repeating concerns about his passengers' safety and leaving his vehicle on the road. DSMF ¶¶ 20, 27, 37, 45, 49. Trooper Peirson repeatedly advised Mr. McMullin that the kids would be safe and that he would ensure that somebody came to collect them. Id. ¶¶ 29, 34, 38, 40. After repeated refusals, Trooper Peirson implored, “Don't make your kids watch this, OK?” Id. ¶ 46.

         In the process of backing away from Trooper Peirson, Mr. McMullin alternated between backing towards his car-at one point, contacting or nearly contacting the driver's side of the vehicle with his back-and backing across the road, away from his vehicle. Id. ¶¶ 31, 44, 48. On two separate occasions, Mr. McMullin entered the southbound, oncoming lane of traffic. Id. ¶¶ 31, 48. Eventually, Trooper Peirson concluded, reasonably, that force was necessary to effect Mr. McMullin's arrest due to Mr. McMullin's repeated refusals to comply with his commands. Id. ¶ 53.

         While facing Mr. McMullin, Trooper Peirson grabbed one of Mr. McMullin's wrists and attempted to turn him around to handcuff him. DSMF ¶ 54; PSMF ¶ 103. As he did so, Mr. McMullin tensed his body, resisting Trooper Peirson's effort. DSMF ¶ 55. Trooper Peirson then struck Mr. McMullin in the face. DSMF ¶ 57; PSMF ¶ 108.

         In his subsequent statements, Mr. McMullin asserts he was knocked unconscious “when the Trooper first hit him.” PSMF ¶ 123; Dep. of Joseph McMullin (“McMullin Dep”) 18-20, 38-41 (ECF No. 20-7, #156, 161). However, as discussed below, the record establishes that any unconsciousness was, at most, momentary. To the extent Mr. McMullin would suggest he experienced any extended unconsciousness the suggestion is contradicted by the video record and Mr. McMullin's own testimony and admissions. Indeed, the objective audio[1] evidence is consistent with Trooper Peirson's assertion that Mr. McMullin was not knocked unconscious and even continued to converse and actively resist arrest throughout the encounter. Def.'s Response to PSMF ¶ 123; DSMF ¶¶ 57, 66, 67, 71, 72, 75, 77, 79, 84, 86, 87.

         Whether momentarily unconscious or not, the parties agree that Trooper Peirson grabbed Mr. McMullin as he was falling and directed him to the ground on his back, in the opposite traffic lane. PSMF ¶¶ 111, 113; DSMF ¶¶ 60, 62. Trooper Peirson landed on top of him. DSMF ¶ 61.

         Once on the ground, Trooper Peirson straddled Mr. McMullin's body. PSMF ¶ 115; DSMF ¶ 63. As he attempted to handcuff Mr. McMullin, Trooper Peirson shouted, “Turn around! Put your hands behind your back!” DSMF ¶ 63. At this point, the video shows Mr. McMullin's arm moving upwards towards Trooper Peirson. Cruiser Video, 17:26 - 17:35 (Doc. 20-1, #64). While the parties contest the purpose of this movement, [2] the parties nevertheless agree that Mr. McMullin exclaimed “Officer!” and moved his hands in front of his face. DSMF ¶ 65; PSMF ¶ 116.

         Trooper Peirson then struck Mr. McMullin a second time, possibly with a closed fist, and rolled Mr. McMullin onto his stomach, shouting “Give me your hands, now!” PSMF ¶¶ 117-118; DSMF ¶¶ 69-70. Mr. McMullin responded, “Officer, relax!” DSMF ¶ 71.

         With Mr. McMullin on his stomach, Trooper Peirson struggled to gain control of Mr. McMullin's wrists as they were under his chest and Trooper Peirson could not reach them. Id. ¶ 72. At this point, Trooper Peirson asserts Mr. McMullin “kept moving his hands and then put his wrists up under his chest so [he] could not reach them.” Id. ¶ 72.[3]

         Trooper Peirson then grabbed the back of Mr. McMullin's head and pushed it down into the pavement and delivered a third blow to the back of Mr. McMullin's head. DSMF ¶ 73; PSMF ¶¶ 120-21, 126.[4] Once again, during his deposition, Mr. McMullin admitted to speaking following this third blow. Cruiser Video, 17:48, (Doc. 20-1); McMullin Dep. 42:13-16 (ECF No. 20-7, #162). After this strike, Trooper Peirson attached handcuffs to one of Mr. McMullin's wrists. DSMF ¶ 74.

         Trooper Peirson maintains that Mr. McMullin “continued to resist” after one wrist was handcuffed and continued to keep the other wrist away from Trooper Peirson. Id. ¶¶ 75, 77. Mr. McMullin denies offering resistance while he was on the ground, but it is apparent from the video that he was conscious throughout the struggle and did not comply with orders to give up his hands. Pl.'s Response to DSMF ¶ 75; Dep. of Kylie Tibbetts (“Tibbetts Dep.”) 17-18 (ECF No. 20-8, #184-85). Regardless, the parties agree that Trooper Peirson then commanded Mr. McMullin to “turn around, give me the other hand.” DSMF ¶ 76.

         When Mr. McMullin did not comply, Trooper Peirson ordered Mr. McMullin to give him his other hand two additional times-the final command coming eight seconds after the previous. Id. ¶¶ 78, 80. Trooper Peirson eventually pulled Mr. McMullin's wrist out from under his body, scraping his hand in the process. Id. ¶ 81, 82.

         Measured from the moment Trooper Peirson first grabbed Mr. McMullin's wrist to the time Trooper Peirson completed handcuffing Mr. McMullin, the confrontation lasted approximately 44 seconds. Id. ¶ 83. The record and parties are unclear as to whether Trooper Peirson delivered a fourth strike prior to successfully handcuffing Mr. McMullin. DSMF ¶ 85; PSMF ¶ 127. Both parties confirm Mr. McMullin spoke to Trooper Peirson “throughout their struggle.” DSMF ¶ 87.

         After the confrontation, Trooper Peirson noticed Mr. McMullin had cuts on the bridge of his nose and asked Mr. McMullin if he needed an ambulance, to which Mr. McMullin responded in the affirmative. Id. ΒΆΒΆ 92-93. Trooper Peirson ...


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